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The Extent of EU Legislation

Introduction

In recent years it has repeatedly been claimed that most British legislation has its origins in decisions taken in Brussels. It has even been suggested by one political party that 75 per cent of British laws are a result of our EU membership. Furthermore, it is also frequently claimed that this EU legislation has been "imposed" on Member States when in reality it has been agreed by the Council of Ministers and, to an increasing extent as time passes, by the European Parliament. As this paper will show, the true figure for the percentage of British legislation that has its origins in Brussels is 8-10 per cent.

The question of the extent of EU legislation has been a matter of debate for some years, not least because of wider concerns – not just in the UK – about the burden of regulation on both public and private sectors. This paper considers just how much EU legislation there is each year and the extent of its impact in the UK.

EU Legislation: its Scope and Purpose

The EU only legislates in fields where it is empowered to do so by the treaties. These fields are primarily: trade within the EU – i.e. single market legislation; agriculture, fisheries and food; economic policy (mostly for eurozone countries); international trade; competition; and justice and home affairs (the UK has the right to opt-in or to opt-out in much of the latter field).

There are three types of EU legislation:

regulations – these are directly applicable in all Member States and are binding;

directives – these are binding on Member States but they decide how they should be implemented in order to achieve the required aim and then legislate to bring that about;

decisions – these are binding on whom they are directed to and can include companies as well as a Member States.

Detailed rules to implement agreed EU policies are often made by the European Commission after consulting Member States. Also, unlike a state, when the EU wishes to do something it often has to act through passing secondary legislation rather by administrative action. This difference in methods of operating makes it difficult to accurately compare the EU’s legislative output with that of a Member State.

According to a study for the British Chambers of Commerce, the amount of EU legislation peaked in 1998 at around 4,000 items and declined thereafter. It was 3,256 items in 2008. By way of comparison, in the case of the UK, some 3327 items of secondary legislation were passed in 2008 alone, along with 33 Acts of Parliament and the 961 measures passed by the devolved parliaments, assemblies and administrations of Scotland, Wales and Northern Ireland.

The steep rise in EU legislation between 1988 and 1998 was largely related to the implementation of the Single Market programme after the ratification of the 1986 Single European Act – the latter strongly promoted by the British Government. Many of the EU’s laws are time limited or are replaced each year (eg fishing quotas). The annual regulation review of the British Chambers of Commerce, published in May 2009, said that the volume of EU laws affecting business had fallen by about a third since the previous year, making them about 20 per cent of the total of regulations adopted in 2008/09 that affected British business.

As at 1 October 2009, 17,356 EU laws were recorded on its current law database. This covers the whole range of laws, from decisions affecting individual Member States (such as on the use of state aids to businesses) to Single Market regulations. There are around 30,000 current items on the UK statute law database but it is only complete in respect of secondary legislation since 1991 and excludes local Acts, so the total of laws in force in the UK far exceeds those of the EU.

EU Legislation and the UK

Over the years many claims have been made about the proportion of UK laws that have their origin in the EU. For example, Tony Blair, in a 2004 speech to the CBI when Prime Minister, claimed that "half of all major new regulation comes from the EU"; the important qualifier in that phrase, "major", did not feature in the many subsequent uses of the 50 per cent claim. Indeed, the then Chancellor of the Exchequer, Gordon Brown, had claimed in his Pre-Budget report in 2003 that "half of all regulations emanate from Europe".

The basis of the 2004 claim was an analysis of UK regulatory impact statements (these are published alongside proposed legislation) which had shown that "about half of all measurers that imposed non-negligible costs on business, charities, and the voluntary sector originated from the European Union" (Hansard 22 July 2004, col. 491W). There is obviously an important distinction between "major" and "non-negligible costs".

A German parliamentary written answer in April 2005 on the number of laws passed in by the Bundestag as a result of EU law, led opponents of the EU within Germany to calculate that 84 per cent of German laws had their origins in the EU. The weakness of this calculation is that it only included national laws but Germany is a federal state where most of the legislation concerning matters such as crime, health, education, welfare and social security is made at regional level. The figure of 84 per cent is therefore wholly misleading because it was not calculated by including all German laws.

The 75 per cent figure used by one political party is as misleading as the claim of 84 per cent. It originates from a speech made by the-then President of the European Parliament, Hans-Gert Pottering, when he was emphasising the importance of the role of the Parliament because it had to consider and approve three-quarters of the EU’s legislation. This has been misrepresented as Mr Pottering claiming that 75 per cent of "Europe’s laws" derive from the EU.

The House of Commons Library, a non-partisan organisation, has calculated the percentage of secondary legislation in the UK that results from EU requirements. This figure has fluctuated between 8 and 10 per cent in the last decade. This figure includes all instruments being implemented in the UK through the normal method of applying EU law – statutory instruments enacted under the European Communities Act 1972 - but does not include primary legislation (i.e. Acts of Parliament) as they are rarely used to implement EU law, except in the fields of crime and justice.

Studies in other EU Member States found the following percentages for the share of their laws that originated in the EU:

Finland – 12 percent

Lithuania – 12-19 per cent

Sweden – 6.3 per cent.

Conclusion

Many attempts have been made to calculate the impact on domestic legislation of EU requirements. This paper has highlighted some of the most significant – and often erroneous - claims. The international comparisons – with other Member States – are compelling because they support the view that approximately 10 per cent of British laws originate in Brussels.

An important aspect of this debate is that EU legislation is often described in the UK as being "imposed by Brussels" when EU legislation is extensively considered and debated by elected bodies, for example the European Parliament and the governments of the Member States. About three-quarters of EU laws have to be approved by the European Parliament as well as by the Council of Ministers in the co-decision procedure; that will increase to almost all EU laws with the passing of the Treaty of Lisbon. As a result, for example, legislation relating to the Common Agricultural Policy will for the first time require the consent of the Parliament. This will mean greater transparency and more opportunities for the arguments of the Commission in support of its legislative proposals (and indeed those of Ministers) to be tested in public.

Although Qualified Majority Voting (QMV) means that legislation can be agreed without the consent of some Member States in the Council, it is relatively rare for this procedure to be adopted as Member States see it as in their own interests that a consensus should be reached whenever possible. A study of the years 2004-2006 found that in the case of the UK, it had voted against only one finally adopted measure in 2004 and in 2005 and two in 2006.

The Lisbon Treaty will bring a further benefit to opening up the EU’s legislative process as all proposals for legislation will in future have to be sent direct to national parliaments, rather than via their governments. It also contains a new procedure to enable national parliaments to return a Commission proposal on grounds that it fails to meet the test of subsidiarity when a number of parliaments share that belief.